No. 82-441 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsEVELYN FERREL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Fallon, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gene Huntley argued, Baker, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Judy Browning argued, Asst. Atty. General, Helena 

Denzil R. Young, County Attorney, Baker, Montana 

Marc Racicot, Count Prosecutor Services, Helena 

Submitted: 11/29/83 

Decided: 3/27/84 

Filed: MAM ;,) i I 

-- 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Evelyn Ferrel appeals from her convictions in the 

District Court, Sixteenth Judicial District, Fallon County, 

of felony theft and felony intimidation. She was given a one 

year suspended sentence on the crime of felony theft, ordered 

to make restitution on the sum of $500, and assessed a $500 

fine . She was additionally given a one year suspended 

sentence for the conviction of intimidation. 

We reverse the convictions of Evelyn Ferrel, with 

instructions to the District Court to dismiss the cha.rges 

against her. 

Evelyn Ferrel and her husband Allie, ages 58 and 73 

respectively in 1981, had been employed in western Fallon 

County, Montana on a large ranch known as the MacKay Ranch, 

or the MacKay Trust Ranch. For 12 years, Allie served as the 

ranch manager and Evelyn as ranch bookkeeper. Donald MacKay, 

the executive member of the MacKay family trust, supervised 

the actj-vities of the Ferrels. It seems und.isputed that in 

large part, the d.a.y-to-day operations of the ranch were taken 

care of by the Ferrels, includimg decisions as to the sale of 

cattle, haying operations, collecting monies, making deposits 

in a bank in Miles City, and drawing checks upon such bank 

account for ranch expenses. 

On November 12, 1980, under Donald MacKay ' s direction, 

the Ferrels disposed of cattle belonging to the ranch at. a 

market in St. Onge, South Dakota. Because MacKay desired 

that the cattle sale appear to have been made in 1981 rather 

than in 1980 for tax purposes (in 1981 the cows and heifers 

would have attained 2 years of age which according to Mr. 

MacKay would entitle the ranch to capital gains treatment 
rather than ordinary income treatment for income tax 

purposes). This purpose was accomplished by having the 

market owner invest the funds for the cattle in a bank time 

certificate of deposit payable to the market owner maturing 

in the spring of 1981. When the certificate matured, the 

Ferrels went to South Dakota and cashed the time deposit 

certificate and obtained the funds, $61,727, which 

subsequently they deposited in the ranch banlc account in 

Miles City. However, at the same time that they received the 

cash deposit, the Ferrels were also presented with a check 

payable to the MacKay ranch in the amount of $4,364.74, which 

represented interest on the monies that had been deposited 

under the bank certificate in South Dakota. This fact was 

reported by the Ferrels to MacKay. He instructed the Ferrels 

to deposit the $61,727, but not to cash the $4,364.74 check 

until MacKay decided how it should be handled. The evidence 

is not clear as to the period of time for which the Ferrels 

were to hold the check. It was contended that they were to 

do so for a few days. It is clear that MacKay did not want 

the check to be hel-d too long because he felt there might be 

some difficulty cashing it, if there was too much delay 

before it was presented for payment. 

MacKay was at the ranch premises in Fallon County on May 

22, 1981, when all of these matters had occurred respecting 

the checks. He did not on that date indicate any 

dissatisfaction with the Ferrels' work. Eecause of this, the 

Ferrels went ahead and put in their usual garden on the ranch 

premises, as they had done i-n the years preceding during 

their tenure as employees on the ranch. On June 9 or 10, 

MacKay returned to the ranch and told the Ferrels that their 

employment was terminated as of June 13, 1981. He said then 
that they could harvest the garden that had been planted. 

Within a few days, however, he extended the time of their 

employment to June 30, 1981. 

On or around June 11, 1981, Evelyn Ferrel cashed the 

interest check and received the funds therefore at a bank not 

the one usually used for the ranch finances. 

MacKay testified that on 3 occasions, one on July 1, 

1981, and two others in the month of June, he demanded of the 

Ferrels the bookkeeping records and accounts of the MacKay 

ranch, and the interest check. On the first occasion, he 

testified, Evelyn made the excuse that the books were not 

current and she wanted to have them brouqht up-to-date before 

she transferred the documents to him. It is not clear from 

his testimony what occurred on the other occasions. 

The Ferrels testified that they had originally been told 

by Mr. MacKay that they could maintain and harvest the garden 

which they had planted, but later Mr. MacKay told them that 

they could not harvest the garden. Evelyn Ferrel told Mr. 

MacKay that she would not turn over the proceeds of the 

interest check to him until he paid them $500 which she 

contended was the value of the garden which he was 

withholding from them. 

On June 30, 1981, the Ferrels went to their attorney in 

Baker, and asked him how they should turn the bookkeeping 

records over to Mr. IlacKay. The attorney informed the 

Ferrels, and they, the same day informed MacKay that he was 

to come to the attorney's office at 2:30 p.m. for the purpose 

of settling their differences. However, MacKay refused to go 

to the attorney's office. Other arrangements were made and 

the parties met without the attorney present at the ranch 

premises on July 1, 1981, where the Ferrels transferred to 
MacKay the bookkeeping records and documents, about which 

there is no dispute in this case now. Evelyn Ferrel however, 

advised MacKay that she would hold the proceeds of the 

interest check until MacKay paid to the Ferrels the sum of 

$500 for the value of the garden, now upon the advice of 

counsel.. The Ferrels then went to the office of their 

attorney in Baker, and there delivered to him the funds from 

the interest check, which the attorney deposited in his trust 

account. 

MacKay refused the condition. He went instead to the 

office of the county attorney in Fallon County. The county 

attorney filed criminal charges of theft and intimidation 

against Evelyn Ferrel and her husband. 

At the close of the evidence in the trial against them, 

the court dismissed on motion the case against Allie Ferrel. 

The case against Evelyn Ferrel was submitted to the jury 

which resulted in the convictions to which we have earlier 

adverted. 

There are in this case a number of contentions, issues 

and sub-issues between the parties, but for the purposes of 

this opinion we will discuss only the issues which we feel 

are dj-spositive of the case. 

I. 

We turn first our attention to the conviction of Evelyn 

Ferrel on the charge of intimidation. 

Count V of the amended information against Evelyn Ferrel. 

charged that, "with the purpose to cause Donald MacKay to 

perform an act, namely to make a payment of $500.00 to Evelyn 

or Allie Ferrel or both, Evelyn Ferrel communicated to Donald 

MacKay a threat to perform without lawful authority the 

offense of theft, in violation of Section 45-5-203, M.C.A." 
The sufficiency of the charge may be dubious (see 

section 46-11-401, MCA), hut it was not challenged on that 

ground. It was Evelyn Ferrel's contention throughout the 

trial and on a.ppeal that the charge of intimidation could not 

stand against her because in fa.ct her threat to withhold the 

proceeds of the check until she was paid $500 did not 

constitute a theft. 

We must perforce consider her conviction of intimidation 

in the light of the decision of the IJnited States Court of 

Appeals for the 9th Circuit in Wurtz v. Risley (9th Cir. 

1983), 719 F.2d 1438. 

Wurtz was convicted in the District Court in Flathead 

County, Montana of intimidation arising from his actions in 

following a woman pedestrian in his automobile and shouting 

to her through an open window that he was going to rape her. 

Wurtz was charged. under section 45-5-203(1) (c) , MCA, (1981), 

which provides: 

"Intimidation. (1) A person commits the offense of 

intimidation when, with the purpose to cause 

another to perform or to omit the performance of 

any act, he communicates to another a threat to 

perform without lawful authority a-ny of the 

following acts: 

" (c) commit any criminal offense. " 

In State v. Wurtz (1981), 195 Mont. 226, 636 P.2d 246, 

this Court upheld the constitutionality of the charge against 

Wurtz under section 45-5-203(l) (c) as above quoted. After 

his conviction was upheld here, Wurtz took his case on habeas 

corpus proceedings to the Federal District Court in the 

western district of Montana and eventually to the United 

States Court of Appeals for the 9th Circuit. In 

Wurtz v. Risley, supra, the Court of Appeals held that 
section 45-5-203 (1) (c) was unconstitutional for overbreadth. 

That court held that the thrust of the statute was toward 

pure speech and away from the regulation of conduct, contra 

to what we had held in State v. Wurtz, supra, and went on to 

say: 

"It is true that threats have traditionally been 

punishable without violation of the first 

amendment, but implicit in the nature of such 

punishable threats is a reasonable tendency to 

produce in the victim a fear that the threat will 

be carried out (citing cases) . Section 203 (1) (c) 

is not so limited. It is possible by judicial 

construction to read an element of instilling fear 

into the term "threat", id., but the Supreme Court 

of Montana has imposed no such narrowing 

construction upon section 203 (1) (c) ' [A] statute. . . which makes criminal a form of pure speech, must 

be interpreted with the commands of the First 

Amendment clearly in mind. What is a threat must 

be distinguished from what is constitutionally 

protected speech.' (citing a case). " 

719 F.2d at 1441. 

Moreover the Court of Appeals held that the constitutionality 

of the statute could be attacked by Wurtz even though he may 

have been guilty of conduct which could be constitutionally 

punished and his a.rgument against the validity of the statute 

involved applications to the rights of third persons. 719 

The Court of Appeals in Wurtz v. F-isley, supra, left 

open to this Court the possibility that the validity of 

section 45-5-203(1) (c) might be at least partially sa.ved by a 

narrow construction of its application from this Court. This 

case involving Evelyn Ferrel is not one that affords such an 

opportunity. In this case Evelyn Ferrel's speech is the only 

act to which the intimidation statute can be applied. It 

cannot be said that her speech instilled. fear in Donald 

MacKay or included threatening gestures or intimidating acts. 

In Wurtz it appeared that the defendant could have been 
charged with misdemeanor assault in the first instance, but 

that is not the case here. 

In the light of the holding in the Court of Appeals in 

Wurtz v. Risley, supra, we reverse the conviction of Evelyn 

Ferrel on the charge of intimidation, and direct a dismissal 

of that charge against her. 

We turn now to a consideration of the conviction of 

Evelyn Ferrel on the charge of felony theft. 

She was charged and convicted in the District Court on 

Count I1 of the information: 

"On or about and during the period of May 26, 1981 

to July 1, 1981 at Fallon County and Carter County 

Montana, Evelyn Ferrel, did purposely or knowingly 

obtain or exert unauthorized control over a 

Cashiers' Check of Tri-State National Bank of Belle 

Fourche, South Dakota payable to MacKay Ranch being 

Check # 5834 in the amount of $4,364.74 dated May 

26, 1981 or the money derived or obtained by 

cashing said check, namely $4,364.74, the property 

of another, namely the MacKay Ranch, and purposely 

or knowingly used the property in such a manner as 

to deprive the owner, the MacKay Ranch, of the 

property." 

When on the appeal in this case we were considering the 

instructions given by the District Court under this charge, 

and the contention of Evelyn Ferrel that no crime had been 

committed by her, a larger question began to emerge, did the 

language of Count I1 state a crime as alleged? 

In this connection a consideration of the applicable 

statutes is necessary. 

The crime of theft, is defined in pertinent part in 

section 45-6-301, MCA, as follows: 

"Theft. (1) A person commits the offense of theft 

when he purposely or knowingly obtains or exerts 

unauthorized control over property of the owner 

and : 
" (a) has the purpose of depriving the owner of the 

property;" 

The term "deprive" is defined in the general definitions 

contained in the Criminal Code, in section 45-2-101(19) as 

follows: 

" 'Deprive ' means to withhold property of another: 

" (a) permanently; 

" (b) for such a period as to appropriate a portion 

of its value; 

"(c) with the purpose to restore it only upon 

payment of reward or other compensation; or 

"(d) to dispose of the property and use or deal 

with the property so as to make it unlikely that 

the owner will recover it." 

Note that the definition of "deprive" states four 

a.lternates, and the definitions are stated in the 

disjunctive, through the use of the word "or". Count I1 in 

the information does not disclose which of these alternates 

Evelyn Ferrel is charged with committing. 

In State v. Johnson (Mont. 1982), 646 P.2d 507, 39 

St.Rep. 1014, we recognized that the term "deprive" is 

defined in four alternate ways and that proof of violation of 

one definition is essential for finding the crime of theft. 

In Johnson, the State proceeded on the theory that "deprive" 

as defined by section 45-2-101(19)(d) was appl-icable. The 

jury was instructed that the word "d-eprive" meant the 

withholding of the property of another "to dispose of the 

property and use or deal with the property so as to make it 

unlikely that the owner would recover it. Only that 

definition was given to the jury, and the defendant was found 

guilty under that definition. On appeal the defend.ant 

contended that another definition, that of subsection (a), 
that "deprive" meant to withhold the property of another 

permanently, should have been given to the jury. This Court 

held however that the definitions in section 45-2-lOl(19) are 

alternate definitions, and that if the evidence supported the 

verdict of the jury on the definition presented to the jury, 

the verdict would be upheld. 

The procedural facts in this case are different. Here 

.the defendant was charged in the broad terminology of section 

45-6-301, and the trial court gave the jury all four 

alternate definitions of "deprive." We are unable to 

determine which definition of "deprive" the jury used in 

arriving at the conviction. It is obvious that not all of 

the definitions used could be supported under the facts in 

this case. Since it cannot be determined upon which theory 

the jury may have convicted the defendant of theft, this 

alone would require, on appellate review, reversal of the 

conviction. State v. Lundblade (Mont. 1981), 625 P.2d 545, 

38 St.Rep. 441; United States v. Carlson (9th Cir. 1980), 61.6 

F.2d 446. 

Having demonstrated that reversal is inescapable under 

this case, we are next brought to the determination of 

whether, under the unique facts here, Evelyn Ferrel can be t 

charged with the crime of theft. It is obvious that three of 

the definitions of the term "deprive" cannot be used against 

her. She did not assume to withhold the property 

permanently, or for such a period as to appropriate a portion 

of its value, or to dispose of the property and use or deal 

with it as to make it unlikely that the owner would recover 

it. Section 45-2-101 (19) (a), (b) , (d) . The only possible 

definition of "deprive" that might apply to the facts of this 

case, is that contained in section 45-2-101 (19) (c) , that, as 
to the property, she had "the purpose to restore it only upon 

payment of reward or other compensation." 

In considering section 45-2-101(19)(c) we are once 

again, shades of Wurtz, supra, brought face to face with 

overbreadth. 

It is immediately apparent that section 45-2-101 (19) (c) 

would properly apply to one withholding personal property of 

another for ransom, as for example "dog-napping"; or to most 

cases of extortion not based on claim of right. But under a 

literal interpretation of section 45-2-101(19) (c), would it 

apply to a storekeeper who kept all of the proceeds of a 

check presented to him by a customer for a previous 

indebtedness owed by the customer? Or to a garage-keeper who 

kept an automobile until a garage bill had been paid? Or to 

a landlord who kept property of a tenant until the rental was 

paid? Or to a tenant farmer who withheld machinery of his 

landlord until the tenant was permitted to harvest crops 

planted on the leased farm during the term of the lease? In 

all these examples, the person withholding may have been 

mistaken as to his right to withhold, but did he thereby 

commit a crime of theft? The questio~s answer themselves, 

but a literal application of section 45-2-101(19)(c) would 

make the actors in these situations guilty of the crime of 

theft. 

We can find the answer here by examining the criminal 

statutes themselves. As we have noted, section 

45-6-301(1)(a), provides that a person commits the offense of 

theft when he purposely or knowingl-y obtains or exerts 

unauthorized control over property and "has the purpose" of 

depriving the owner of the property. 
"Purpose" is defined. in section 45-2-101 (58) . There it 

is stated in part tha.t "when a particular purpose is an 

element of an offense, the element is established although 

such purpose is conditional, unless the condition negatives 

---- the harm or evil- sought -- to he prevented b~ -- the law defining 

the offense. 'I (Emphasis added) . At most, in this case, the 

purpose of Evelyn Ferrel to retain the interest check was 

conditional, the condition being that MacKay pay over the 

value of the garden to which she claimed a right. That 

condition "negatives the harm or evil sought to be prevented 

by the law defining the offense." The evil the statute seeks 

to prevent is the permanent deprivation of the owner of all 

or a pa.rt of his property. Evelyn Ferrel may have committed 

a civil trespass; she did not commit a crime as defined in 

our statutes under the unique facts of this case. 

There are other issues raised by the parties in this 

case relating to purpose and knowledge, the application of 

the concept of intent, the use of other-crimes evidence, and 

related matters, but is not necessary to discuss them in view 

of our application of the criminal statutes. 

Accordingly, each judgment of conviction of Evelyn 

Ferrel is reversed and the counts against her dismissed. 

We Concur: 

Chief Justice 
Justices 

Mr. Justice L. C. Gulbrandson is unavailable for signature. 
Mr. Chief Justice Haswell., concurring in part and dissenting 

in part. 

I concur in reversing and dismissing defendant's conviction of felony intimidation. The U.S. Court of Appeals 

for the Ninth Circuit has held Montana's intimidation statute 

unconstitutional for overbreadth as indicated in the majority 

opinion. Wurtz v. Risley (1983), 719 F.2nd 1438. 

However, I would affirm defendant's conviction of 

felony theft. 

The majority hold that reversal is inescapable because 

it cannot be determined upon which of the four alternative 

definitions of "deprive" in Section 45-2-101(19), MCA, the 

jury followed in convicting the defendant. In my view this 

analysis and holding is incorrect in the context of this 

case. 

Here defendant was charged in the words of the theft 

statute with purposely or knowingly obtaining or exerting 

unauthorized control over the property of another with the 

purpose of depriving the owner of the property. Section 

45-6-301(1) (a), MCA. The defense at the trial was that the 

defendant lacked the requisite intent to commit theft because 

she did not intend to permanently deprive the owner of his 

property, but simply openly withheld the proceeds of the 

check to require the owner to keep his alleged agreement to 

allow defendant to raise and harvest a garden. 

The evidence at the trial supported only one of the 

four alternative definitions of "deprive" in the statute, 

viz, to withold property of another ''with the purpose to 

restore it only upon payment of a reward or other compensation." Section 45-2-lOl(19) (c), MCA. No evidence was intro- 
duced at the trial which would support any of the other three 

alternative definitions. 

The District Court should not have given the other 

three alternative definitions of "deprive" as they were not 

relevant nor material to the evidence or issues in the case. 

State v. Lundblade (Mont. 1981), 625 P.2d 545, 38 St-Rep441; State v. Brooks (1967), 150 Mont. 399, 436 P.2d 91. 1 

would find this error harmless beyond a reasonable doubt in 

the context of the trial as there wa.s no evidence on which 

the jury could base a conviction except sub-section (c) of 

Section 45-2-101(19), MCA. The majorj.ty opinion acknowledges 

this in the following sta.tement contained therein: 

". . . She did not assume to withhold the 

the property permanently, or for such a 

period as to appropriate a portion of its 

value, or to dispose of the property and 

use or deal with it as to make it unlikely that the owner would recover it. 

Section 45-2-101 (19) (a), (b) , (d) . The 

only possible definition of 'deprive' 

that might apply to the facts of this 

case is that contained in Section 

45-2-101 (19) (c) , that, as to the property 

she had 'the purpose to restore it only 

upon payment of reward or other 

compensation.'" 

Montana statutes provide in pertinent part: 

". . . No cause shall be reversed by 

rea-son of any error committed by the 

tri.al court against the appellant unless 

the record shows tha-t the error was 

prejudicial." Section 46-20-701, MCA. 

"Types of errors noticed on appeal. Any 

error, defect, irregularity, or variance 

which does not affect substantial rights 

shall be disregarded. . ." Section 

46-20-702, MCA. 

I would apply the foregoing rules and find that the 

error did not affect the substantial rights of the appellant, 

should be disregarded and that the error was harmless beyond 

a reasonable doubt. 
Additionally the majority go beyond granting the appellant a new trial and instead dismiss the charge of theft 

against her because "the evil the sta.tu.te seeks to prevent is 

the permanent deprivation of the owner of all or part of his 

property" as set forth in the majority opinion. The words of 

the statute do not require permanent deprivation of the owner 

of al.1 or part of his property. The theft statute as applied 

to the facts of this case simply requires "a purpose to 

restore it only upon payment of a reward or other compensation" Section 45-2-101 (1-9) (c) , MCA. This statute fits the 

facts of this case like a glove. The jury so held. 

I would affirm defendant's conviction of felony theft. 

"44 8,~q@ Chief Justice 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 82-441 

STATE OF MONTANA, 

Plaintiff and Respondent, 

TT . EVELYN FERREL, 

Defendant and Appellant. 

APR If 2984 

CLERK OF SUPREME COURT 

STATE OF ~ONYANA 

SPECIAL CONCURRENCE AND DISSENT 

OF MR. JUSTICE L. C. GULBRANDSON 

Opinion Decided: March 27, 1984 

Filed: 

Clerk 
I join with Chief Justice Haswell in concurring in 

part and dissenting in part.